Supreme Court of India said.....

Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION [C] NO.169 OF 2005
IN
CONTEMPT PETITION [C] NO.615 OF 2004
IN
CIVIL MISCELLANEOUS PETITION NO.8076 OF 1988
IN
CIVIL APPEAL NO.3519 OF 1984


Dr. P P C Rawani & Ors. ...
Petitioners

Vs.

Union of India & Ors. ... Respondents

WITH

Contempt Petition No.160/2005 in CA No.3519/1984
I.A. No.1, 3-5 in Civil Appeal No.3519/1984



JUDGMENT


R.V.RAVEENDRAN, J.



Contempt Petition No.160/2005 is filed by the doctors regularly

recruited through Union Public Service Commission (UPSC, for short).

Contempt Petition No. 169/2005 is filed by the doctors who were appointed
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on ad hoc basis between 1968 and 1977 and whose services were

regularized with effect from 1.1.1973 or from the date of their initial

appointment.



2. Civil Appeal No.3519/1984 and Writ Petition No.1228/1986, filed by

some Doctors appointed on ad hoc basis, were disposed of by this Court by

order dated 9.4.1987 recording the submission on behalf of the Union of

India that the services of several of the ad hoc appointees had been

regularized and the services of the rest will also be regularised. Referring to

the issue of seniority inter-se among them, this Court observed that if the

orders of regularization of appointment are made to take effect from the

respective dates of their initial appointment, and seniority was consequently

determined, the problem will be solved. As there was no objection to such a

course by the ad-hoc doctors (appellants/petitioners therein), the said appeal

and writ petition were disposed of accordingly.



3. The Union of India experienced some difficulties in giving effect to

the directions of this Court as it found that if regularization was granted

with effect from the date of their initial appointment to all the ad-hoc

appointees, several regularly appointed doctors may be relegated to

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secondary position, in view of the earlier appointment of ad hoc doctors.

The regularized doctors therefore filed applications before this Court for

giving effect to the orders dated 9.4.1987. The regularly appointed doctors

also filed applications to ensure that their interests were not

jeopardized/prejudiced. They pointed out that they were not parties to the

cases decided on 9.4.1987. These applications were considered and

disposed of by this Court with the following directions by order dated

29.10.1991 [reported in Dr. PPC Rawani vs. Union of India - 1992 (1) SCC

331] :

"(1) Each of the appellants will be treated as regularized in Group A of
the Central Health Service from January 1, 1973 or the date of his first
initial appointment in the service (though as ad hoc Group B doctor),
whichever is later.

(2) In order to ensure that there is no disturbance of the seniority
and the promotional prospects of the regularly recruited doctors there
will be a separate seniority list in respect of the appellants and their
promotions (about which directions are given below) shall be regulated by
such separate seniority list and such promotions will only be in
supernumerary posts to be created as mentioned below.

(3) (a) Each of the appellants will be eligible for promotion to the post
of Senior Medical Officer or Chief Medical Officer or further promotional
posts therefrom taking into account his seniority in the separate seniority
list which is to be drawn up as indicated above.

(b) The promotion of any of the appellants to the post of Senior
Medical Officer, Chief Medical Officer and further promotional post
therefrom will be on par with the promotion of the regularly recruited
doctor who is immediately junior to the concerned appellant on the basis
of their respective dates of appointment. In other words, if a regularly
recruited doctor, on the basis of the seniority list maintained by the
department, gets a promotion as Senior Medical Officer or Chief Medical
Officer or further promotion thereafter, then the appellant who was

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appointed immediately earlier to him will also be promoted as a Senior
Medical Officer or Chief Medical Officer or further promotion therefrom
(as the case may be) with effect from same date.

(4) In order that there may be no conflict or any possibilities of
reversion, the post to which an appellant will be promoted (whether as
Senior Medical Officer or Chief Medical Officer or on further promotion
therefrom) should only be to a supernumerary post. Such number of
supernumerary posts should be created by the government as may be
necessary to give effect to the above directions. No promotion will be
given to any of the appellants in the existing vacancies which will go
only to the regularly appointed doctors.

(5) The appellants hereby agree to give up all monetary claims on
account of revision of scales, regularization or promotion to which they
would be entitled till October 31, 1991.

(6) Apart from the appellants there are certain doctors who fall in the
same category but who had not filed writ petitions before the High Court.
They have filed directly writ petitions before this Court bearing Nos.2620-
2659 of 1985 and intervention applications. The intervention applications
are allowed and rule nisi is issued in the writ petitions of which the other
parties take notice. These interveners and writ petitioner have to be
granted the same relief as the appellants. It is made clear that all these
applicants and petitioners will be entitled to the same reliefs as the
appellants for all purposes of seniority and promotion. All monetary
claims on account of revision of scales, regularization or promotion till
October 31, 1991 are given up by these applicants and petitioners as well."
(emphasis supplied)


4. The regularized doctors filed Contempt Petition No.615/2004

alleging non-compliance with the order dated 29.10.1991. That petition was

disposed of on 13.5.2005 recording the submission that the order dated

29.10.1991 will be implemented in six weeks. The regularized doctors have

again filed a contempt petition (Contempt Petition No.169/2005). The

regularized doctors contend that whenever any regularly appointed doctor is

promoted to Senior Administrative Grade from the post of Chief Medical

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Officer - Non Functional Selection Grade (for short `CMO (NFSG)'], all

regularized doctors whose dates of appointment were earlier to that of such

promoted regularly appointed doctor, should also be promoted to the post of

Senior Administrative Grade, having regard to directions contained in the

order dated 29.10.1991. The regularised doctors contend that respondents

have failed to comply with the said directions and therefore committed

contempt.



5. On the other hand the regularly appointed doctors have filed a

Contempt Petition No.160/2005 contending that having regard to the

directions in the judgment dated 29.10.1991, the regularized doctors can

only be promoted to supernumerary posts and in the same ratio which is

available to regularly appointed doctors. They contend that if the directions

issued on 29.10.1991 are construed in the manner put forth by the

regularized doctors, it will adversely affect their seniority and promotional

prospects which were specifically protected by directions No.(2) and (4)

issued on 29.10.1991. They contend that any attempt by respondents (Union

of India and its authorities) to promote regularized doctors to substantive

posts would violate the directions of this Court contained in the order dated

29.10.1991. They also seek a direction to restrain the respondents from

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creating more than 12 supernumerary posts at SAG level. The regularly

appointed doctors have also filed an application for clarification (IA

No.3/2005) seeking following clarifications/ modifications of the order

dated 29.10.1991 :


(a) Insofar as promotion to the SAG level is concerned, ratio of the said
posts to total strength shall be maintained at 3.8% in the case of regularized
(ad hoc) doctors group, as is done in the case of regular doctors group.

(b) In determining the promotion of ad hoc doctors, the date of actual
appointment of the juniormost person in a batch of regular doctors (where
the UPSC has recommended their appointments on a single date) shall be
the point of reference for parity with ad hoc doctors.

(c) While promoting ad hoc doctors of supernumerary SAG level posts,
Union of India should ensure that no such promotee ad hoc doctor officiates
against a senior post to the detriment of any doctor whose actual date of
appointment is prior to the date of appointment or deemed appointment of
such ad hoc doctor.



6. Therefore what falls for consideration is the true import of directions

contained in Paras 3(a) and (b) of the order dated 29.10.1991.



7. The genesis of the problem relates back to the order dated 9.4.1987.

Two things are evident from the said order. First is that this Court, in

passing the said order, did not adjudicate upon the rights or claims of the ad

hoc appointees on merits. The matters were disposed merely recording the

submission of the respondents that all ad hoc appointees were regularized or

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will be regularized. The second is that the direction relating to the seniority

of regularized doctors in that order is not with reference to regularized

doctors vis-`-vis regularly appointed doctors, but only inter-se among the

ad hoc doctors who were regularized. This is clear from the following

observations in the said order:


"Pursuant to the interim directions and suggestions made by us, the
services of several of the petitioners have already been regularized and we
are assured that the services of the rest will also be regularized. It is
however stated by the learned counsel for the Union of India that there
can be some problem regarding their seniority since some have been
regularized earlier and some later. The difficulty anticipated is capable of
easy solution. All orders of regularization made pendente lite are naturally
subject to our final orders. Those in respect of whom orders of
regularization have already been issued and the others are all parties before
us.

If the orders of regularization of appointment are made to take effect from
their respective dates of original appointment and seniority so determined
there will be no other problem. Sri Venugopal, learned counsel assured us
that none of the doctors has any objection to this course. It may be so
done. This order disposes of the appeal and the writ petition."

[Emphasis supplied]




8. The orders dated 9.4.1987 and 29.10.1991 make it clear that this

Court did not intend any regularized doctor to steal a march over the

regularly appointed doctors, either individually or as a group. To ensure that

the seniority and promotional prospects of regularly recruited doctors were

not affected, this court directed a separate seniority list in respect of the

regularized doctors and clarified that their promotions will only be in

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supernumerary posts to be created. Supernumerary posts are non-cadre

permanent posts. They are created to accommodate the lien of officers who

are entitled to hold a lien against regular permanent posts. Being ex-cadre

posts, no specific duties are attached to them and the officers concerned

usually perform duties in some vacant temporary or permanent posts. (vide

D.K.Reddy v. Union of India - 1996 (10) SCC 177).



9. If all the ad hoc doctors were to be regularized with effect from the

date of their initial appointment, with seniority also from the date of initial

appointment, there will be no difference between regular recruitment and

regularization of ad hoc appointments, thereby defeating the very purpose

of systematic regular recruitment through UPSC. Ad hoc or stop gap

appointees were not normally regularized and given seniority from the date

of initial appointment. They were usually given regularization and seniority

only after a certain period of service, which used to vary from one year to

ten years or even more. When this Court directed on 9.4.1987, that

regularized doctors shall have seniority from the date of their initial

appointment, it was only a direction intended to regulate the seniority inter-

se the regularized doctors as this Court found that among the ad hoc

appointees, regularization was not being effected in accordance with

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seniority and some who were subsequently appointed were being

regularized earlier and some who earlier appointed were being regularized

later. It was not intended to affect the seniority of regularly appointed

doctors. The regularized doctors cannot occupy the posts meant for regular

doctors, either at entry level or at higher promotional levels.



10. When the clarificatory order dated 29.10.1991 was passed, this Court

took care to direct that promotions of regularized doctors will only be in

supernumerary posts. This Court also directed that promotion of any

regularized doctor will be on par with the promotion of the regularly

recruited doctor who is immediately junior to the regularized doctor. This

meant that if one regularly appointed doctor was promoted, one regularized

doctor (that is, the senior most from those regularized doctors whose date of

initial appointment was earlier to that of said promoted regularly appointed

doctor) was to be promoted by creating a supernumerary post. The above is

also clear from the wording of Para 3(b) of the directions dated 29.10.1991

which uses the term `on par' and uses singular and not plural, when

referring to the regularized doctor to be promoted. The clarificatory order

dated 29.10.1991 did not mean that if one regularly appointed doctor was

promoted, all regularized doctors appointed earlier to his appointment,

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should be promoted to a higher post by creating that many number of

supernumerary posts. Such an interpretation will lead to absurd results and

give undue advantage in promotions to regularized doctors who are outside

the cadre. To clarify the interpretation, we give below an illustration.


Illustration : On 1.1.2008, there are 50 regularly appointed
Chief Medical Officers and 25 regularized Chief Medical
Officers. One regularly appointed CMO whose date of
appointment is 1.1.1990 is promoted to Senior Administrative
Grade. Out of the 25 regularised CMOs, 10 were appointed
prior to 1.1.1990. The clarificatory directions dated 29.10.1991
does not require all 10 regularised CMOs appointed prior to
1.1.1990 to be promoted to Senior Administrative Grade by
creating ten supernumerary posts. All that it requires is that
when one regularly appointed doctor holding the post of CMO
(appointed on 1.1.1990) is promoted, one regularized doctor
holding the supernumerary post of CMO (who is senior-most
from among the regularized doctors who were appointed prior
to 1.1.1990) will have to be promoted to a supernumerary post
of Senior Administrative Grade.



11. Having regard to the different interpretations put forth by the regular

doctors and regularized doctors, it cannot be said that the respondents

(Union Government and its officials) disobeyed the orders of this Court by

their action or inaction. The rival claims led to a state of confusion. We have

therefore given the clarification as above to put an end to the long pending

controversy.

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12. It is made clear that what is stated above is only an interpretation of

the orders dated 9.4.1987 and 29.10.1991. Neither the order dated 9.4.1987

nor the clarificatory order dated 29.10.1991 lays down any principle of law

in regard to either regularization or inter se seniority between regular

appointees and regularized appointees. The order dated 29.10.1991 merely

attempted to give finality to an issue which had arisen in the context of the

order dated 9.4.1987 which was in the nature of a consent order. In fact,

referring to the order dated 29.10.1991, this court stated thus in M.A. Haque

v. Union of India [1993 (2) SCC 213] :
"In fact this Court has, of late, been witnessing a constant violation of the
recruitment rules and a scant respect for the constitutional provisions
requiring recruitment to the services through the Public Service
Commission. It appears that since this Court has in some cases permitted
regularization of the irregularly recruited employees, some Governments
and authorities have been increasingly resorting to irregular recruitments.
The result has been that the recruitment rules and the Public Service
Commissions have been kept in cold storage and candidates dictated by
various considerations are being recruited as a matter of course. What is
further, in the present case, some of those like the petitioner-applicants
who were initially recruited on ad hoc basis, have exerted themselves and
taken pains to appear for the tests before the UPSC and have enrolled
themselves through regular channel unlike in Dr. Rawani case. We have
thus on hand three classes of employes as pointed out earlier, viz., the
outside direct recruits, the in-service direct recruits and the ad hoc
employees like the petitioner-applicants who were regularized through the
Court's order. Further, Dr. Rawani case as has been pointed out on behalf
of the respondents, pertains to the Central Government Health Services
which has a target component both at the initial and promotional stages.
The course adopted by this Court to direct creation of supernumerary
promotional posts at every higher promotional stage there, may not be
feasible in the medical service in the Railways. The creation of
supernumerary posts has its own limitations, both physical and financial.
The burden of additional posts even when they are not necessary and
cannot be accommodated, is not easy to carry. We are, therefore, of the
view that the directions given in Dr. Rawani case has to be confined to

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the special facts of that case and cannot be extended to other cases. In
any case, this Court should not give any such direction to the Railways. If,
however, the Railways decide to follow that course, they can do so and
nothing prevents them from doing it. We would rather refrain from
creating a precedent by giving such directions".
[emphasis supplied]




Whatever we have stated above will apply only to the controversy that has

arisen in regard to the interpretation of the order dated 29.10.1991. It is

made clear that neither the directions in the order dated 29.10.1991

(reported in 1992 (1) SCC 331) nor the clarification of those directions by

this order, shall be construed as an enunciation of any general principle nor

be applied as a precedent in any other case relating to any dispute between

regularly appointed employees and regularized employees.



13. With the above observations and clarifications, and a direction that

the respondents shall give effect to the order dated 29.10.1991, as clarified

above, the contempt petitions and applications for clarification/modification

are disposed of.

...............................J
[S. B. Sinha]


.................................J
[R. V. Raveendran]

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.................................J
[Markandeya Katju]
New Delhi;
November 14, 2008.